The Constitutional Court is set to review the compatibility of an employer’s right to transfer an employee—without the employee’s consent—to a different type of work than agreed in the employment contract with the constitutional order.
Under Section 41(3) of Act No. 262/2006 Coll., the Labour Code, as amended,
“If the purpose of the transfer under paragraphs 1 and 2 cannot be achieved within the scope of the existing employment contract, the employer may transfer the employee, even without their consent, to a different type of work than originally agreed.”
This provision applies in particular where the employee can no longer perform their current duties for health reasons (Section 41(1) of the Labour Code) or where the employee has been given notice due to not meeting legal requirements for the agreed work, or on grounds that would justify summary dismissal, or if criminal proceedings have been initiated against the employee for an intentional offence related to their duties and causing harm to the employer’s property (Section 41(2)).
The Supreme Court has now proposed that the Constitutional Court annuls Section 41(3) of the Labour Code. According to the Supreme Court, this provision is incompatible with the constitutional order, specifically with the constitutionally guaranteed right to freely choose one’s occupation and with the prohibition of forced labour. In the Court’s view, any transfer to a different type of work under the scenarios described in Section 41(1) and (2) should be conditional on the employee’s consent.
The Supreme Court expressed the view that in the absence of Section 41(3), Sections 41(1) and (2) should be interpreted—in line with the principle of freedom of contract and the rule that agreements must be respected—so that the employer, in the situations described, is either obliged (under paragraph 1) or entitled (under paragraph 2) to make a proposal to the employee to change their work assignment, rather than impose such a change unilaterally.
The Supreme Court’s detailed reasoning can be found in its petition submitted to the Constitutional Court on 24 October 2024, available here (in Czech):
https://www.usoud.cz/fileadmin/user_upload/Tiskova_mluvci/Navrhy/2024/n%C3%A1vrh_Pl._%C3%9AS_31_24_AN.pdf
The underlying case was represented before the first-instance and appellate courts by the head of our employment law practice JUDr. Anna Bartůňková.